In Allen v. Cooper, decided Monday, the Supreme Court held unanimously (with some concurrences) that Congress lacked constitutional authority to abrogate state sovereign immunity for claims of copyright infringement.  The opinion relied heavily on the Court’s prior decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, which held that Congress lacked constitutional authority to abrogate state sovereign immunity for claims of patent infringement.  That’s notable because a number of the Justices think (or likely think) Florida Prepaid was wrongly decided.

My view is that stare decisis, whatever its strengths in other contexts, does not (and should not) require courts to extend erroneous decisions to new circumstances.  (See here).  Specifically for originalists, I’ve suggested that a way to implement originalism in the face of the many nonoriginalist precedents we have is to (at minimum) not extend nonoriginalist precedents.  That approach is likely to contain nonoriginalist precedents, as new issues arise that can be resolved on originalist principles, building a larger body of originalist law.  (The article linked above applies this idea to the supremacy clause and federal common law).

But what counts as an “extension”? I acknowledge this issue in the article but don’t really deal with it.  For those who think Florida Prepaid was wrong, Allen v. Cooper raises this question (though the opinions don’t discuss it much).  (To be clear, I’m not saying Florida Prepaid was wrong on originalist principles, just assuming so hypothetically).  Specifically as to Allen v. Cooper, does the decision “extend” Florida Prepaid from patents to copyrights?  Or does Florida Prepaid decide that Congress lacks abrogation authority under the “Intellectual Property Clause” (as the Court calls it), thus covering both patents and copyrights?

My tentative view is that the question is whether there’s some meaningful difference between patents and copyrights on this ground, and my tentative view is that the answer is no (so it’s not an “extension”) but I’m not terribly confident.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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